CREATORS OF THE COMPLIANCE TUNE-UP®

AARMR | ABA | ACAMS | ALTA | ARMCP | IAPP | IIA | MBA | MERS® | MISMO | NAMB

Showing posts with label Settlement Service Providers. Show all posts
Showing posts with label Settlement Service Providers. Show all posts

Friday, October 28, 2016

CFPB's Compliance Bulletin and Policy Guidance 2016-02 - Service Providers: Questions and Answers

Managing Director
Lenders Compliance Group

On Wednesday, October 26, 2016, the CFPB issued updated guidance on service providers, based on its previous issuance of April 13, 2012, titled CFPB Bulletin 2012-03, Subject: Service Providers (“Bulletin”), that had been published in the Federal Register. The Bulletin is a statement of policy that articulates considerations relevant to the Bureau’s exercise of its supervisory and enforcement authority. This new issuance is published in the Federal Register and is titled Compliance Bulletin and Policy Guidance 2016-02, Service Providers (“Guidance”).

Click HERE for a copy of the Guidance and the Bulletin.

Essentially, this updated guidance provides additional clarifications regarding how supervised entities are to manage their risk management program for service providers. It is meant to clarify that “the depth and formality of the risk management program for service providers” may vary depending upon the service being performed (i.e., the service provider’s size, scope, complexity, importance and potential for consumer harm) and the performance of the service provider in carrying out its activities in compliance with Federal consumer financial laws and regulations. 

Much of the guidance is a reiteration of the Bulletin, with a reminder that “while due diligence does not provide a shield against liability for actions by the service provider, it could help reduce the risk that the service provider will commit violations for which the supervised bank or nonbank may be liable.” This reiterating of the Bulletin seems to have been made necessary because, although other CFPB Bulletins were published in the Federal Register, it appears that the Bureau did not previously publish Bulletin 2012-03 when it was issued.

I have said all along how important it is to work with an outsource due diligence company, if a financial institution is not going to adequately equip and staff an in-house evaluation function, which means ensuring the presence of competent risk management professionals and the required research tools. This is why we established VendorsCompliance Group as the an outsource evaluator that would be far more than a compilation service. 

These compilation services that hold themselves out as evaluators for vendor management purposes are just putting together and providing a compilation rating. That is simply insufficient, viewed from the standpoint of effective due diligence. Vendors Compliance Group does not merely compile information and documentation, which is only a first step, but also it actually evaluates and risk rates service providers by means of hands-on reviews conducted by risk management professionals using state of the art research methodologies. The evaluator actually is often personally in contact with the bank or nonbank to ensure that there is a strong and steady flow of transaction information. 


When Vendors Compliance Group risk rates a service provider, the supervised bank or nonbank can be sure that it is a rigorously derived, vendor compliance risk rating, provided by a due diligence methodology which stands up to regulatory scrutiny.

Let’s review some basics, as set forth in the Guidance. 
I am going to frame this outline in the form of Questions and Answers for the sake of ensuring a broad understanding of the Bureau’s expectations with respect to service provider evaluations. I will use the Guidance as the source document.

Q: Why is a service provider evaluation necessary?
A: The Bureau expects supervised banks and nonbanks to oversee their business relationships with service providers in a manner that ensures compliance with Federal consumer financial law, which is designed to protect the interests of consumers and avoid consumer harm. 

Q: What is the governing statute for the definition of a Federal consumer financial law?
A: Section 1002(14) of the Dodd- Frank Act (12 U.S.C. 5481(14)).

Q: What institutions are expected to evaluate their service providers?
A: Supervised banks and nonbanks, as follows:
  • Large insured depository institutions, large insured credit unions, and their affiliates (12 U.S.C. 5515); and
  • Certain non-depository consumer financial services companies (12 U.S.C. 5514). 
Q: What service providers are expected to be evaluated?
A: The following supervised entities are to be evaluated:
  • Service providers to supervised banks and nonbanks (12 U.S.C. 5515, 5514); and
  • Service providers to a substantial number of small insured depository institutions or small insured credit unions (12 U.S.C. 5516).
Q: Specifically, how is the term “service provider” defined by the Bureau?
A: “Service provider” is generally defined in Section 1002(26) of the Dodd-Frank Act as ‘‘any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.’’ (12 U.S.C. 5481(26)) A service provider may or may not be affiliated with the person to which it provides services.


Thursday, June 3, 2010

HUD Announces RESPA "Required Use" Prohibition - Rulemaking

Overview

HUD published notification today of an Advance Notice of Proposed Rulemaking (ANPR), which commences the process of initiating rulemaking.

The purpose of the ANPR is to "strengthen and clarify" the prohibition against the ''required use'' of affiliated settlement service providers in residential mortgage transactions under Section 8 of RESPA.

According to HUD, the ANPR is necessary because HUD has received complaints that some home buyers are committing to use a builder's affiliated mortgage lender in exchange for construction discounts or discounted upgrades, without sufficient time to research their contracts or to comparison shop.

Therefore, this ANPR will solicit information that can be used to inform any future revision or clarification of the regulatory definition of the ''required use'' of affiliated settlement service providers in residential mortgage transactions.

By means of issuing the ANPR,  HUD seeks comments from sources that are experienced in affiliated business arrangements in residential mortgage transactions.

Interested persons are invited to submit comments regarding this ANPR to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW., Room 10276, Washington, DC 20410-0500.

Comment Due Date: September 1, 2010

___________

Highlights

In order to address concerns about the operation and effect of incentivized affiliate referrals, HUD issued a revised definition of ''required use'' in its Final Rule on November 17, 2008, which was to take effect on January 16, 2009. The revised definition of ''required use'' in the November 17, 2008 Final Rule would have provided as follows:

"Required use means a situation in which a person's access to some distinct service, property, discount, rebate, or other economic incentive, or the person's ability to avoid an economic disincentive or penalty, is contingent upon the person using or failing to use a referred provider of settlement services. In order to qualify for the affiliated business exemption under § 3500.15, a settlement service provider may offer a combination of bona fide settlement services at a total price (net of the value of the associated discount, rebate, or other economic incentive) lower than the sum of the market prices of the individual settlement services and will not be found to have required the use of the settlement service providers as long as: (1) The use of any such combination is optional to the purchaser; and (2) the lower price for the combination is not made up by higher costs elsewhere in the settlement process." (See 73 FR 68239-68240)

As a result of litigation challenging the revised definition, HUD deferred the effective date for the revised definition, and subsequently withdrew the revision by a Final Rule published on May 15, 2009 (74 FR 22822). When HUD withdrew the revised definition, it left in place the existing definition of ''required use,'' pending new rulemaking on the subject.

HUD's Final Rule withdrawing the revised definition of ''required use'' noted that public comments received in response to the proposed withdrawal had highlighted the potential complexity of existing affiliated business arrangement practices and the need for further clarity on the application of ''required use'' to such practices. The comments also underscored the need for HUD to continue to pursue reform in this area in order to protect consumers from harmful steering and referral practices.

In withdrawing the definition, HUD stated its intention to pursue new rulemaking on the subject of ''required use.'' In the May 15, 2009, Final Rule, HUD also reiterated its commitment to the goals of RESPA reform and to addressing referral practices that result in required use. This ANPR is in furtherance of that goal.

Visit our Library for Issuance

Law Library Image 

‘‘Required Use’’ Prohibition: Advance Notice of Proposed Rulemaking

FR: Vol. 75, No. 106, 31334-31338 (06/03/10)